CHAPTER 23: On Doubtful Causes
Origin of moral doubts — The dictates of conscience, though erroneous, not
to be violated — Opposite opinions supported by argument, or by authority
— In doubtful and important matters the safer side of the question to be
followed — In such cases it is right to abstain from war — Disputes
settled by conference or arbitration — Christian duties — Whether single
combat is allowable in order to avoid war — In cases of equal doubt the
claims of the present possessor to be preferred — Where neither party is
in possession, claims to be divided — Whether a war can be just on both
sides, explained by a distinction.
I. THERE is much truth in Aristotle's observation that moral reasonings
can never amount to the certainty of mathematical demonstration. Because
in mathematical reasoning, all the figures are considered in the abstract,
purely by themselves, and without relation to the circumstances of time or
place, so that there is nothing to warp the judgment from the object
immediately under consideration. Besides the figures in general form a
direct contrast to each other. Thus, for instance, there is no
intermediate line between a straight line and a curve.
But it is not so in morals, where the least circumstances vary the
subject, and admit a latitude of interpretation, settling the points of
truth and justice between two extremes. So that between what is right and
what is unlawful there is a middle space, where it is easy to in. cline to
the one side, or to the other. This occasions an ambiguity somewhat like
the difficulty of deciding the precise moment, where the twilight begins,
and where it ends. From hence Aristotle concludes that it is sometimes
difficult to determine, between two extremes, what line of conduct ought
to be chosen or rejected.
II. But it must be laid down as a necessary principle, that although an
action may in reality be just, yet if the party doing it, after weighing
every circumstance, cannot reconcile the act to his conscience, he incurs
some degree of guilt. "For whatever is not of faith, says the Apostle, is
sin;" where, by the term faith he means a deliberate judgment of the mind.
For God has given conscience a judicial power to be the sovereign guide of
human actions, by despising whose admonitions the mind is stupified into
brutal hardness,, For it often happens that judgment can point out nothing
certain, but hesitates; and when such doubts and hesitations cannot
satisfactorily be cleared up, the rule of Cicero is a safe one to follow,
who says, that it is an excellent injunction, which forbids us to do a
thing of the rectitude or impropriety of which we entertain a doubt.
But this rule cannot be applied, where of two things, in the choice of
which there is equal doubt, the one must be done, in which case that must
be selected, which seems to be the least unjust. For on all occasions,
where a choice cannot be avoided, the less of two evils assumes the
appearance of a virtue.
III. But in doubtful cases, after examination, the mind seldom remains
neuter, but inclines to one side, or the other, persuaded either by the
merits of the case, or by respect for the judgment of those, who have
delivered an opinion upon the question. Now the merits of the case are
derived either from the causes, the effects, or other concomitant
circumstances.
IV. To apprehend such distinctions properly, practice and penetration are
necessary, and where men have not in themselves a capacity for the active
exercise of judgment it behoves them to follow the maxims of others, who
are distinguished by their wisdom and experience. For, in the opinion of
Aristotle, those things are probably just, or true, which seem so to all,
or to the greater part of men of worth. And this is the method of judging
pursued by Sovereign Princes, whose engagements in the affairs of life
allow them but little leisure for study and deliberation Thus the ancient
Romans never undertook wars, till they had consulted the sacred college,
established for that purpose, and the Christian Emperors scarcely ever did
so without advising with the Bishops, in order to be apprized of any thing
therein that might affect religion.
V. It may happen in many disputed points, that the intrinsic merits of the
case, or the opinions of the learned, are equal on both sides. When that
happens, if the matters in discussion are of no great importance, there is
nothing to blame in the person, that makes his choice either way. But in
matters of moment, where the lives of men are at stake, the decision
should incline to the safer side, according to the proverbial maxim, which
pronounces it better to acquit the guilty than to condemn the innocent.
VI. War then being an object of such weighty magnitude, in which the
innocent must often be involved in the sufferings of the guilty, between
wavering opinions the balance should incline in favour of peace.
There are three methods, by which independent nations may settle their
disputed rights without coming to the decision of the sword.
VII. The first method is that of conference. For, in the words of Cicero,
"there being two methods of deciding quarrels, the one by discussion and
the other by force, the former, a peculiar characteristic of man, and the
latter, of the brute creation: when the first of these methods fails, men
are obliged to have recourse to the latter." Mardonius, in the Polyhymnia
of Herodotus, blames the Grecians, who, being united in one language,
might settle their quarrels by messengers of peace, by heralds, and
negotiations, rather than by war.
VIII. The other method is that of compromise, which takes place between
those, who have no common judge. Among innumerable instances of this kind
in ancient history, we may select that given by Xenophon in his account of
Cyrus, where that prince takes the king of the Indians for arbitrator
between himself and the king of Assyria. The Carthaginians in their
disputes with Masinissa prefer a settlement of this kind before a decision
of war. Livy too informs us that the Romans themselves, in a dispute with
the Samnites, made an appeal to the common allies of both.
The office of deciding wars and putting an end to the contentions of
armies was assigned, according to Strabo, to the Druids of the Gauls, and
upon the testimony of the same writer, it formed a part of the priestly
functions among the Iberians.
Surely then it is a mode of terminating their disputes, balancing their
powers, and settling their pretensions worthy to be adopted by Christian
Kings and States. For if, in order to avoid trials before judges who were
strangers to the true religion, the Jews and Christians appointed
arbitrators of their own, and it was a practice recommended and enjoined
by St. Paul, how much more ought such a practice to be recommended and
enforced, to gain the still nobler end of preventing the calamities of
war.
These and many other reasons of no less importance might be advanced for
recommending to Christian powers general congresses for the adjustment of
their various interests, and for compelling the refractory to submit to
equitable terms of peace.
IX. A third method of terminating disputes, without hostilities, was by
lot, a practice commended by Dion Chrysostom in his speech on the
interposition of fortune in directing affairs, and it was commended long
before him by Solomon in the xviii. chapter of his Proverbs.
X. Nearly related to the last named method is that of single combat, a
practice recommended under the idea that by the risque of two lives a
quarrel might be decided, which would otherwise have cost the blood of
thousands. In Livy we find Metius addressing Tullus in the following
terms, "let us try some method of determining to whom the pre-eminence
shall belong, without wasting the blood of each people." Strabo says it
was the practice of the ancient Greeks, and Aeneas proposed it to Turnus,
as the most equitable way of settling their pretensions. It is described
too as the custom of the ancient Franks.
XI. Although in doubtful cases, both sides are bound to devise every means
of avoiding hostilities, yet it is a duty more incumbent upon the claimant
than upon the immediate possessor of whatever may be the subject of
dispute. For it is a rule not only of civil, but of natural law, that,
where the pretensions are equal, those of the possessor are to be
preferred.
To the foregoing remarks an additional observation may be made, that if
any one, knowing his pretensions to be just, cannot produce sufficient
proofs to convict the intruder of injustice, he cannot lawfully have
recourse to arms, because he has no OSTENSIBLE RIGHT, by which he can
compel the intruder to relinquish the possession.
XII. But where the right is ambiguous, and neither party has possession,
the pretender, who refuses to divide the claims, may reasonably be charged
with injustice.
XIII. From what has been said it will not be difficult to settle a much
agitated question, whether, with respect to those, who are the principal
movers of a war, there can be justice on both sides. For there are
distinctions proper to be made in the various acceptations of the word
JUST.
A thing is said to be just, either as to its causes, or its effects. The
causes too may be confined either to justice in a PARTICULAR acceptation,
or they may be extended so as to include under that name every kind of
rectitude. Again, a particular acceptation may be divided into two kinds,
one relating to the ACTION, and the other to the agent. An agent may be
said to act justly, when, in what he does, he commits no breach of STRICT
LAW, though his conduct may not be conformable to equity.
In a PARTICULAR acceptation of the word justice, with regard to a matter
in dispute, it cannot in war, any more than in legal proceedings, apply to
both sides. For there can be no moral principle, commanding us, under the
same circumstances, both to Do, and to ABSTAIN from a particular action.
It may happen indeed that neither of two belligerent powers may act
unjustly. For no one can be charged with acting unjustly unless he knows
that he is doing so; but there are many, who are not aware of the nature,
extent, and consequences of their measures. Thus in a law-suit, both
parties may sincerely believe that they have justice on their side. For
many things both in law and fact, which would establish a right, may
escape the notice of men.
In a GENERAL acceptation, an action may be called just, where the agent is
free from every kind of blame. Yet in many cases an agent may deviate from
the strict rules of legal justice, and be liable to no blame, when that
deviation is owing to unavoidable ignorance, there having been neither
time nor opportunity sufficient for him to know the substance, or perhaps
existence of the law. So it may happen in law-suits, that both parties are
free not only from the imputation of injustice, but from all blame,
especially where either of them is litigating a matter not on his own, but
on another's account; as for instance where a guardian is acting for his
ward, he would not be authorized in abandoning even a doubted right.
Aristotle says that in matters of disputed right neither side can be
charged with injustice; conformably to which opinion Quintilian, observes
that an upright pleader may be engaged on either side of the question.
Aristotle further observes that passing a just judgment is an ambiguous
term, signifying that a judge determines either according to the strict
letter of the law, or according to the dictates of his own conscience.
And, in another place, he has said that giving a wrong judgment through
ignorance is no act of injustice.
But in matters of war and peace, where such weighty and varied interests
on all sides are concerned, it would be difficult to obtain a judgment
purely impartial, and abstracted from all personal motives, unless there
be the most clear and undeniable evidence on the points in question.
If we denominate a thing to be just, from its effect in conferring certain
rights, in this sense it is plain that in war there may be justice on both
sides. In the same manner, a sentence not strictly legal, or a possession
not perfectly just may nevertheless confer certain rights.